Normally, when we write blog posts about our conversations on All Things Legal, we tend to extract a small section from a discussion and focus on that in the blog, for the sake of keeping things simple. As we say in the intro of every show, our goal is to “distill topical events into their legal essence.”

But legal issues aren’t simple. Desires and personal beliefs clash with legal limitations and past precedents, resulting in an impossible to untangle, scarcely tangible Gordian Knot of legal messiness. Despite our attempts to simplify the topics we discuss, this inescapable complexity is often evident in our discussions on All Things Legal.

So for today’s blog post, we decided to try and give you, the reader, a little more insight into the inherent complexity of legal matters—and how they sometimes conflict with common sense and personal beliefs—by sharing with you the entirety of last week’s conversation about the settling of the Title IX lawsuit against Florida State University.

This case is a great opportunity to show how the weight of public sentiment is sometimes invoked in a way which actually impairs the ability of the legal system to do its job, creating a problematic conflict between legal courts and the often under-informed court of public opinion.

We hope that you find this discussion interesting. Without further ado…

Title IX and Its Recent Use in Rape Allegation Cases

We’ll start off by letting Craig Ashton summarize what Title IX is, and what it has to do with the Florida State case: “Basically… Title IX was a part of the Education Amendments of 1972… it basically says, ‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal assistance.’ (So if your private school receives no federal assistance, Title IX does not apply to you.)

“And so essentially, Title IX is now being used—I think rightly so—by several women across the country who’ve said, ‘Look, I’ve been sexually assaulted or raped by somebody on a sports team or other students, and now [the] school [has not] investigated this properly. I don’t feel safe on campus, therefore I’m being discriminated against under the education program based upon my gender, because I should be able to feel safe from assault, battery, sexual assault, battery and rape on campus, and you’re not doing that for me, and therefore you’re in violation of Title IX and I’m entitled to money damages.’”

Erica Kinsman and Her Case Against Florida State University

Tim Hodson then stepped in to summarize the specifics of the case against FSU: “So… Erica Kinsman… accused Jameis Winston in 2012 of raping her in his dorm room. The investigation, actually, did not even exist for eight months, according to her… She kept pounding the pavement, [she talked to] the football coach, the [school’s] compliance office etc., to try to get some type of movement on this. Nothing was done, the D.A. chose not to prosecute the case.

“While all this is going on, she alleges that she was getting continually harassed on campus, which made it difficult for her to continue her educational opportunities, and that’s what she sued under. She sued Florida State for discrimination, and the fact that, (A) they didn’t investigate it quick enough, (B) they didn’t stop the discrimination against her, which [led her to believe she was] being denied an equal opportunity to be educated.

“It’s a very interesting argument. I’m surprised it stuck, actually, because it’s curious to me [as to] how the powers that be at Florida State could control [what] other students are doing to her on campus. It’s impossible, (A) to guarantee her 100% safety, (B) it’s impossible for them to control the student body. There’s got be 30 to 40 thousand kids that go to Florida State.”

Did the Fame of the Alleged Attacker Affect How FSU Responded?

Ed Schade then redirected the conversation towards the matter of the alleged attacker, and how his standing might have affected the school’s actions: “But, I think the main point is that it was Jameis Winston. Didn’t he win some big trophy?”

Tim: “He won the Heisman Trophy, [he was the] number one pick in the NFL draft, [and] he just got elected to the Pro Bowl.”

Ed: “And this was all delayed during the football season?”

Tim: “Oh absolutely. There are some major stains here against Florida State. I mean, the football coach, ‘Jimbo,’ that gives you a symbol right there of what this guy’s like. He’s obviously not the brightest crayon in the box.”

After Tim got some good-natured ribbing about his choice of euphemism, he defended his assertion about Florida State coach ‘Jimbo’ Fisher’s, shall we say, rather muted shade of color: “He played the ignorant card, ‘Well, I didn’t know we had a Title IX policy with sexual discrimination.’ Come on man!

“When coaches say that… it makes them look stupid, it demeans the profession, and it demeans all college athletics when they act like they don’t know what’s going on… It’s Florida State. It’s not like this is Stanford or Northwestern where kids don’t get in trouble. This is Florida State. If you don’t think the head football coach knows every single procedure to get these kids out of trouble… come on. We’re not stupid.

Ed: “Let’s say if this guy was third string and they jumped on it, this [case] would have never gotten anywhere.”

Tim succinctly pointed out that the case wouldn’t have existed in the first place if Winston hadn’t been the alleged perpetrator, because “If he [had been a third stringer], they would have jumped on it.”

Ed: “They would have! And if they’d jumped on it because he was third string, this never would have had legs. But because they delayed it, that’s what really puts that cloud of suspicion over it, and that’s what burned Florida State.”

Tim: “Absolutely, they completely dragged their feet. But her argument is, to me, it’s an interesting one because, how can the school guarantee her safety, and how can the school guarantee that students aren’t going to harass her. She can get harassed for having a pink backpack, I mean is that a Title IX violation? So that argument to me is weird, but because of the other activities, that’s why Florida State had to nip this in the bottom and get it done with quick, because all those things were going to start to surface.”

The Settlement, and What It Covers

Craig then got things back on track by giving the lowdown on the settlement of the case: “All right, so here’s what happened. Basically, Florida State, without taking responsibility—which is typical, every release that is signed in settlement prior to a judgment or verdict says that the defendants is not taking responsibility, here’s some money, this is to buy your peace, not to admit any culpability, and thanks for coming—so, Florida State paid $950,000, and that was for [the hardships she had endured].”

Craig took a moment to delineate what the victim was compensated for, and what she wasn’t compensated for: “She had to, basically, get out of the school that she loved, she wanted to graduate from Florida State, [instead] she had to go to another school, the fright, anxiety, the depression, etc. [The financial compensation was] not for the underlying rape, which the school’s not responsible for, that wasn’t the allegation. It was the way they handled it afterwards, and not keeping her in a safe environment where she wasn’t harassed [that led to the lawsuit and settlement].

“And if this is true, and you know, he was never charged, so there’s never been an adjudication that he actually committed what she said. But if this is true, it takes a very strong will to come forward and accuse the quarterback of the most popular team in Florida, and [who] has millions of followers, to accuse the Heisman Trophy winner of rape, right?”

Civil Versus Criminal Cases, and Why This Isn’t Over

Craig: “…The interesting thing about the Title IX process is that it operates kind of in parallel legal channels… For instance, when O.J. Simpson was charged with murder, there’s a criminal case, which is one avenue. He was acquitted. In parallel to that was a civil case where he had a $30 million judgment against him…

“So in this case they had the civil [case involving] her against the university, and then you have this parallel investigation with the Department of Education Office for Civil Rights.

“So, we have clients all the time say, ‘I want to do this because I don’t want this to happen to anybody else.’ And we say, ‘Unfortunately, you don’t have that power.’ In a civil case all we can get you is the imperfect remedy of money. That’s what you’re entitled to, and that’s what she got. I bet you she would give back that 950… I bet you she would trade that for this never happening.

“But what she’s probably said to her attorneys is, ‘I don’t want this to happen to anybody else,’ and it was stipulated that the Office for Civil Rights is not withdrawing their investigation. That’s still going on.”

Tim: “And Florida State also implemented a brand-new program that’s called ‘No More.’ It’s where they give sexual abuse classes in orientations [with students].”

Craig: “And good for her! If this allegation is true, good for her. This is somebody who had the intestinal fortitude and the courage to come forward against the most prominent individual on that campus, and make an allegation which has changed their policy, so good for her.”

How Such Cases Can Be Affected By the Public’s Ignorance of the Legal Process

Tim: “A similar thing happened in Oregon too, when they settled that lawsuit for $800,000 against the basketball team. A program was implemented for sexual abuse awareness, etc.

“…The unfortunate part about the Oregon lawsuit is the University of Oregon came under a lot of heat for basically doing basic discovery. They asked for evidence of stuff the coach [had said], and then her psychological records on campus, to talk about prior problems she had had. Those were very identifiable pieces of discovery in evidence that they’re allowed to look at, that the University was raked over the coals for doing because they were [supposedly] attacking the victim, and that’s interesting how that gets twisted. That’s basic litigation discovery right there.”

Ed: “I always find it kind of interesting whenever an accusation like this shows up in a college, that the college spearheads it and not the District Attorney’s Office on a rape charge. That’s a criminal action… Then they throw it into the lap of the university, ‘Why didn’t you do an investigation?’ Well, they’re not geared [to do an investigation]… Their job is education! The District Attorney’s Office, the police department, the Sheriff’s Office, or the local constable, that’s what they’re supposed to be doing.”

Craig: “I’ve never experienced an environment, in a culture where [college] sports are paramount. I mean, [I] graduated from Berkeley. [There], education is paramount. It’s the number one university in the world from an educational perspective and… You know, [college] sports are not that… big out in California. But you know, when you’re in a place like Tallahassee, I would imagine the pressure for that team to win is immeasurable… Not prosecuting [the rape allegation] I think was probably an easy decision for them.

“The thing that happened in Oregon which is slightly different is the coach, Coach Altman, recruited some players and one of them was from… Providence College in Rhode Island. And [the student] had already been let go at that team for sexual misconduct.

“And then the… female student at Oregon said she was raped by three players, and what happened was is that during litigation, [in] the answer to the complaint, Oregon said, ‘Hey, if she loses, she’s gonna have to pay all of our legal costs,’ and somebody got a hold of that and said, ‘Look at this, University of Oregon has three players that are accused of rape, and [the school’s] gonna make the victim pay?’

“And all of a sudden this gets in the paper, and becomes national, and Oregon starts getting on their back heel a little bit, going, ‘Wow, is this really worth our reputation? …They’re going to start forgetting about our cool uniforms and start associating us with something more nefarious, right?’”

Tim: “There’s nothing nefarious from a legal standpoint about [asking the student to pay legal fees if she lost her case] at all. That’s standard. That’s the windfall you get to avoid frivolous lawsuits, is that if you lose this, you’re on the hook to pay for the other side’s costs and fees to prove that you were full of it… There was nothing out of the realm [of normal legal considerations] at all.”

Ed: “Yeah, but they got hit on that… then the discovery, they got hit on fees. I like the invocation of Sisyphus by the president of the school. The guy comes in and goes, ‘You know, we don’t to indulge of any more of these Sisyphean acts,’ i.e., Sisyphus had to roll that boulder up the hill, [only] to watch it roll down every day, and keep repeating it. So [the president of the school] is saying… ‘She’s the boulder. I don’t want to keep pushing this lawsuit along. Let’s get rid of it and move forward.’”

The Takeaway

We hope that this discussion of the FSU case was educational, and that it gives you more of an appreciation for the complexity of the legal process as a whole. While it is definitely an imperfect system, it really is designed to protect the legal rights and interests of the various parties involved in a legal case, to extract justice for victims where necessary, and to prevent abuse of the judicial system.

With regard to the FSU case itself, we will continue to follow it, and we hope that Erica Kinsman—as well as every woman who suffers in the way that she has—gets the justice that she ultimately deserves.

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